F I L E D

Electronically
01-13-2012:10:14:06 AM
Joey Orduna Hastings
Clerk of the Court
Transaction # 2699027
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6 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
7 IN AND FOR THE COUNTY OF WASHOE
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10 ZACH COUGHLIN,
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vs.
Plaintiff,
14 WASHOE LEGAL SERVICES, et al;
Defendants.
__________________________
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Case No.: CV11-01955
Dept. No.: 10
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ORDER GRANTING MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF
PROCESS
19 Presently before the Court is a Motion to Dismiss for Non-Service of Process and, in
20 the Alternative, Insufficient Process, filed by Defendant MELISSA MANGIARACINA
21 (hereafter "Defendant',) on November 28, 2011. Following, on December 15, 2011,
22 Plaintiff ZACH COUGHLIN (hereafter "Plaintiff") filed a document titled "Opposition to all
23 Defendant's Motions to Dismiss and all Defendant's Motions to Quash Service, Motion for
24 Extension of Time to Respond/Continuance; Opposition to Motion to Tax Costs
25 Simultaneously Seeking Extensions of Time or Continuance to Respond" (hereafter
26 "Plaintiff's Opposition"). The following day, December 16, 2011, Plaintiff file a document
27 titled "Supplement to Motion for ReconSideration and Motion to Set Aside NRCP 59, 60
28 Dismissal and Supplement to Opposition to all Defendant's Motions to Dismiss and all
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1 Defendant's Motions to Quash Service, Motion for Extension of Time to
Respond/Continuance; Opposition to Motion to Tax Costs Simultaneously Seeking
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Extensions of Time or Continuance to Respond" (hereafter "Plaintiff's First Supplemental
4 Opposition"). That same day, Plaintiff also filed a document titled "Opposition to all
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Defendant's Motions to Dismiss; Motion to Set Aside or Vacate Order Granting Dismissal
NRCP 59, NRCP 50; Motion for Reconsideration" (hereafter "Plaintiff's Second Supplemental
Opposition',).! Subsequently, on December 27, 2011, Defendant filed a Reply in Support of
Motion to Dismiss for Non-Service of Process and, in the Alternative, Insufficient Process.
Contemporaneously therewith, Defendant filed a Request for SubmisSion, thereby
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submitting the matter for the Court's consideration.
I. Factual & Procedural Background
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This case arises out of an employment dispute. Plaintiff was formerly employed as
an attorney for Defendant Washoe Legal Services. Plaintiff alleges that, while he was an
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employee, he became aware of several potential legal violations by his former employer.
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Plaintiff claims that he was fired after he informed his former employer of the violations,
and that such firing was in retaliation for his informing the former employer of the
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violations. Additionally, Plaintiff claims that he was subjected to a hostile work
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environment.
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Plaintiff filed suit against his former employer and related entities and individuals on
June 27, 2011, in Case No. CV11-01896. This suit is currently assigned to Department Six
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of the 2
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Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a secon
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action, which he admits asserts the same claims as those presented in his first action.
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Plaintiff's second action is Case No. CV11-01955, and it is Plaintiff's second action that is
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currently before this Court. Defendant Melissa Mangiaracina is named as a defendant in
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28 1 The Court notes that Plaintiff's filings do not conform to District Court rules for such filings. Nonetheless, in
the interest of fairness, the Court will consider the merits of Plaintiff's arguments.
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1 both actions. She now moves the Court to dismiss Plaintiff's claim on the basis that
2 Plaintiff failed to serve process in the manner required by Nevada law.
3 II. Standard of Review
4 Pursuant to NRCP 12(b)(5) the standard of review for a motion to dismiss is
5 rigorous. Blackjack Bonding v. City of Las Vegas Municipal Court, 116 Nev. 1213; 14 P.3d
6 1275 (2000). As such, the Court will construe the pleadings liberally and draw every
7 reasonable inference in favor of the non-moving party. Vacation Village v. Hitachi America,
8 110 Nev. 481, 484, 874 P.2d 744, 746 (1994).
9 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.
10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong
11 presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco
12 Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). Thus, upon being
13 adequately stated, a claim may be supported by showing "enough facts to state a claim to
14 relief that is plausible on its face." Bell AtlantiC Corp. v. Twombly, 127 S.Ct. 1955, 1969
15 (2007) (citation omitted). However, the factual allegations included in a complaint "must
16 be enough to raise a right to relief above the speculative level." lei. at 1964-65. "The
17 pleading must contain something more ... than ... a statement of facts that merely creates
18 a suspicion [of] a legally cognizable right of action." lei. at 1965.
19 III. Legal Analysis
20 As noted above, Defendant seeks to dismiss Plaintiff's claim for insufficient service 0
21 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of
22 process was insufficient as to Defendant.
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NRCP 4(a) requires that:
Upon the filing of the complaint, the clerk shall forthwith issue a
summons and deliver it to the plaintiff or to the plaintiffs
attorney, who shall be responsible for service of the summons
and a copy of the complaint. Upon request of the plaintiff,
separate or additional summons shall issue against any
defendants.
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1 NRCP 4(i) further provides that a Plaintiff must serve a summons and complaint within 120
2 days of the filing of the complaint:
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If a service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the
action shall be dismissed as to that defendant without prejudice
upon the court's own initiative with notice to such party or upon
motion, unless the party on whose behalf such service was
required files a motion to enlarge the time for service and
shows good cause why such service was not made within that
period ....
Here, Plaintiff filed the instant suit on June 30, 2011. Accordingly, Plaintiff had until
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October 28, 2011 to timely serve process upon the various defendants. However, Plaintiff
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did not serve Defendant with process until November 16, 2011. To date, Plaintiff has not
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moved for an enlargement of time for service, nor has he shown good cause as to why
such service was not made within the statutory period.
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Plaintiff does not respond to Defendant's argument in his oppositions. Instead,
16 Plaintiff merety notes that he served several of the other defendants, and raises several
17 other issues that appear to be completely unrelated to the issue currently before the Court.
18 The Court considers Plaintiff's failure to respond to Defendant's argument as an admission
19 of the argument's merit. See Polk v. State, 126 Nev. Adv. Op. 19, 233 P.3d 357 (2010).
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1 Thus, the Court concludes that Plaintiff's service of process was untimely pursuant to NRCP
2 4(i), and the Court will dismiss his claims against Defendant.
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3 NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's Motion to
4 Dismiss for Insufficient Service of Process is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff's Complaint against Defendant is
DISMISSED WITHOUT PREJUDICE.
DATED this /:;z
day of January, 20:)/k/-
STEVEN P. ELLIOTT '
District Judge
28 2 In light of the Court's conclusion that Plaintiff's attempted service was untimely, the Court does not address
Defendant's arguments regarding additional defects in service.
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CERTIFICATE OF MAILING
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court by
3 using the ECF system which served the following parties electronically:
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5 JOSEPH GARIN, ESQ. for MELISSA MANGIARACINA, KATHY BRECKENRIDGE, BOARD PRES.
OF WLS, MARC ASHLEY, TODD TORVINEN, KATHY BRECKENRIDGE, TODD TORVINEN,
6 WLS BOARD MEMBER, PAUL ELCANO, PAUL ELCANO, EXECUTIVE DIRECTOR, WLS
BOARD, WASHOE LEGAL SERVICES
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8 GARY FULLER, ESQ. for COMMmEE TO AIDE ABUSED WOMAN
9 ZACHARY COUGHLIN, ESQ. for ZACH COUGHLIN
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BRIAN GONSALVES, ESQ for TAHOE WOMEN'S SERVICES
DATED this La.
day of
HEIDI HOWD
Judicial Assistant
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